The Gauhati high court order is a first of its kind on breach of right to privacy and late night searches by army forces in an area under the AFSPA.

The judgement could have a bearing on similar searches by security forces posted in the North-East or the Kashmir valley.(Getty Images/iStockphoto)

The Gauhati high court has granted compensation of Rs 1 lakh to a private military contractor whose house was raided by an army intelligence team in what is known in army circles as the ‘Jorhat Dacoity’ case of 2011, in a first of its kind order on breach of right to privacy and late night searches by army forces in an area under the Armed Forces Special Powers Act (AFSPA ).

The judgement could have a bearing on similar searches by security forces posted in the North-East or the Kashmir valley.

The high court division bench of justices Ujjal Bhuyan and Nelson Sailo has ruled that “the right to privacy of the petitioner and his family members were infringed not only due to non-conformity with the dos and don’ts by the army unit which carried out the operation but by the very execution of the operation itself.”

The high court order came on a petition by a private military contractor, Surajit Gogoi, whose house was raided on the night of 20 December 2011 by an army team. Gogoi was suspected to be a sympathizer of the anti-talks faction of the United Liberation Front of Assam (ULFA), and according to army intelligence inputs, three of this splinter group’s leaders were taking shelter in his residence en route to Mon in Nagaland.

But the raid ended in a fiasco as the army team could not find anything incriminating in the house of Gogoi and instead decamped with some phones, cash and jewellery.

“Such action (midnight search) on the part of the army authority has certainly violated the rights of the petitioner and the family members under Article 21 of the Constitution of India”, the court added.

Rejecting the army’s plea that the operation was legitimate and bona fide and covered by the protection afforded by Section 4 of the AFSPA, 1958, the court concluded that, “There is nothing on record to justify such unwarranted raid on the residence of the petitioner. Owning 12 vehicles, having three wives and living beyond his known source of income can be no ground to sanction a search operation under Section 4(d) of the Armed Forces (Special Powers) Act, 1958. Therefore, there appears to be a failure at the operational level as well as at the functional level, leading to gross violation of the dos and donts, enumeration of which may not be necessary because the violations are so glaring.”

Senior advocate B D Das, who appeared for Gogoi, said: “The court has said that privacy of a person within the confines of his house or residence is a cherished right and has to be respected. I believe this judgment will have a far-reaching impact for the army as it upholds right to privacy ahead of AFSPA.”

In August last year, a nine-judge bench of the Supreme Court ruled that Indians enjoy a fundamental right to privacy, which is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution.

The Jorhat Dacoity case triggered a conflict within the top brass of the Indian Army. Following the incident, the then Chief of the Army Staff, General VK Singh, launched action against 3 Corps General Officer Commanding-In-Chief, Lt Gen Dalbir Singh Suhag, and put him under a disciplinary and vigilance ban that jeopardized his chances of becoming the next army chief. Suhag did go on to become army chief in July 2014, retiring in December 2016.